YES, STATE WORKERS ARE FIRED AT TIMES

Susan Kuczka, Tribune Staff WriterCHICAGO TRIBUNE

The story of the sleeping guard has gained almost folklore status at the Illinois Department of Mental Health and Developmental Disabilities.

It's not just because the guard was fired after the department's inspector general took snapshots of him snoring with his feet up on a desk at the 300-patient Chicago-Read Mental Health Center on the Northwest Side of Chicago.

Now the guard has been reinstated, with compensation for all lost pay and benefits. An arbitrator recently overturned the state's decision last year firing the guard, saying the punishment wasn't consistent with discipline of other workers found sleeping in the past.

To critics, the story is a classic example of what's wrong with the system that allows unionized state employees who have been fired to win their jobs back through arbitration. The guard was represented by the Illinois Federation of Public Employees, one of several state employees' unions.

But to supporters of the labor relations system, the sleeping guard's reinstatement is merely an aberration in an otherwise workable process of dealing with employees who have been fired and want their jobs back.

"No one likes to lose, but we don't lose that often," said Nancy Pittman, a labor relations lawyer for the Illinois Department of Central Management Services, which represents the state at arbitration hearings.

Contrary to the popular notion that it's nearly impossible to fire a state employee, more times than not the state wins when it disciplines workers.

The numbers tell the story. Since January 1993, 700 state employees have been fired from all departments. Only 77, or 11 percent, were reinstated outright. Eighteen others were reinstated but received significant alternative discipline, such as long suspensions and loss of pay, Pittman said.

But state figures also show that fewer than half of all disciplined state workers end up filing grievances through their unions. And even fewer reach the arbitration stage, the final step in settling labor-management disputes.

But when workers file grievances, those whose cases get to arbitration have a nearly 50 percent chance of winning their jobs back, according to statistics provided by the American Federation of State, County and Municipal Employees, the largest state employees' union, which represents about 45,000 workers.

In these cases, the union's high rate of success is due to the fact it carefully chooses its battles.

Since January 1990, for instance, 1,559 employees have been fired, but only 84 cases reached arbitration. Of those 84 cases, 39 of the fired employees, or 46 percent, won their jobs back.

Overall, figures shows that the union had a 44 percent success rate in arbitrating 160 cases over the past four years that involved all types of discipline, from firings to suspensions.

"We're not going to arbitrate a case we don't think we have a chance of winning," said Henry Bayer, executive director of AFSCME Council 31.

But what irks some critics of the system are cases like that of the sleeping guard.

"I suppose we ought to be grateful that the arbitrator stopped short of requiring chocolate mints on the employee's pillow," Ron Davidson, director of the Mental Health Policy Project at the University of Illinois-Chicago, said in a recent letter to the state protesting the guard's reinstatement.

Davidson is conducting a long-term study on disciplinary procedures within the Department of Mental Health, where he used to work as an administrator.

Davidson is very interested in those firings that wind up in arbitration, a quasi-judicial hearing before a panel of independent arbitrators. In each case, the state and the union jointly select the arbitrators from one of two outside groups, the Federal Mediation and Conciliation Service or the American Arbitration Association.

Among Illinois' 28 state agencies, the most firings have occurred within the Department of Mental Health, where 323 employees have lost their jobs since January 1993, records show. The Department of Corrections was second, with 134.

Dismissal figures drop significantly for state employees who don't work in institutions. The Department of Public Aid had 57 discharges. The Department of Children and Family Services had 50.

The arbitration resulted in the reinstatement of 49 mental health employees, 21 corrections workers, 11 public aid employees and one DCFS worker.

In the case of the sleeping guard, the state plans to appeal the arbitrator's ruling in Cook County Circuit Court. In the meantime, the guard won't be allowed to return to work.

In ruling against the department, the arbitrator said it was unfair for the state to fire the guard for sleeping when other employees previously caught sleeping had only received suspensions.

C.J. Dombrowski, the Department of Mental Health's inspector general who snapped photos of the guard snoozing, said she was disappointed that the firing was not upheld, especially since the employee was the overnight supervisor of the mental hospital's central security desk.

But Dombrowski said she hoped such rulings would prompt efforts to improve training for everyone in the arbitration process.

"There's been a good success rate," she said, "but we have a long way to go."